Tyler v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT EKOW TYLER, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ) _____________________________________ ) CASE NO. 2D00-448 Opinion filed October 4, 2002. Appeal from the Circuit Court for Hillsborough County; Ronald N. Ficarrotta, Judge. James Marion Moorman, Public Defender, and Daniel R. Aidif, Special Assistant Public Defender, Bartow, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee. BLUE, Chief Judge. Ekow Tyler appeals his habitual offender sentences for possession of cocaine and delivery of cocaine. The State concedes that a habitual offender sentence is not permitted for possession of cocaine. See § 775.084(1)(a)(3), Fla. Stat. (Supp. 1998); Washington v. State, 750 So. 2d 118 (Fla. 2d DCA 1999). We reverse this sentence and remand for imposition of a guidelines sentence. As to the sentence for delivery of cocaine, the State also concedes error because the evidence was insufficient to prove that Tyler qualified for habitual offender treatment. The State failed to prove either that there were sequential convictions or that Tyler committed the new offense within five years of his release on the qualifying convictions. See Reynolds v. State, 674 So. 2d 180 (Fla. 2d DCA 1996). Therefore, we reverse this sentence. Tyler preserved this issue for appeal by filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). Because Tyler did not raise these objections at the time of sentencing, the State shall have the opportunity on remand to prove that Tyler qualifies for habitual offender sentencing on this conviction. See Reynolds, 674 So. 2d at 181. Reversed and remanded for resentencing. FULMER and CASANUEVA, JJ., Concur. -2-

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